Abu Ghaith’s day in court

Sulaiman Abu Ghaith, a son-in-law of Osama bin Laden who once served as a spokesman for Al Qaeda, pleaded not guilty at his arraignment on Friday morning in federal court in Manhattan, where he was charged with conspiring to kill Americans.

Now you may be wondering what is going on here. “Mr. Abu Ghaith” as the Times refers to him, is charged with conspiracy to kill Americans going back to the early days of Al Qaeda. What is this stand-in for OBL doing in federal court cloaked with the constitutional rights of criminal defendants? You won’t find the answer in the Times. AT NRO Andrew McCarthy explains (and his entire post is must reading, as is Tom Joscelyn’s Weekly Standard editorial):

[T]he administration has never forfeited its goal of returning to the Clinton-era counterterrorism, when all terrorists were deemed defendants presumed innocent, not enemies to be quelled. Now, with the help of President Obama’s Islamist confidant, Turkish prime minister Recep Tayyip Erdogan, Obama has found a way around Congress’s ban.

Last month, Turkey found itself in custody of longtime al-Qaeda bigwig Sulaiman Abu Ghayth, the son-in-law of Osama bin Laden and described by the FBI as the terror network’s “consiglieri.” To satisfy its Islamist base, Erdogan’s government pretended to extradite the Muslim terrorist to his native Kuwait rather than cooperate with American agencies. But the Turks conveniently shipped Abu Ghayth to Kuwait by way of Jordan . . . where the U.S. has more open, effective counterterrorism cooperation and where our government was thus able to take Abu Ghayth into custody.

So, was this high-ranking member of the enemy forces shipped to Gitmo for long-term detention and interrogation in the hope of gleaning fresh intelligence? Of course not. Because Abu Ghayth was not detained at Gitmo, he was not subject to the statutory prohibition against using government funds to transfer enemy combatants into the U.S. So, while no one was paying attention, the administration whisked him into lower Manhattan, where his indictment in civilian court was promptly announced. He thus promptly received legal representation — so much for interrogation — and is enjoying all the protections of the Bill of Rights.

According to a government press release, prosecutors plan to prove the overall al-Qaeda conspiracy against Abu Ghayth — going back to 1989 and “including the attacks on the United States on September 11, 2001, in New York, Virginia, and Pennsylvania, which killed approximately 2,976 people.”

Understand what this means. Other than the relative notoriety of the culprits, bringing Abu Ghayth to New York is no different from bringing KSM to New York for a civilian trial. The Obama administration’s intention is to try the same case against Abu Ghayth that it planned to present against KSM. This is a bold presidential decision to undermine military commissions and to proclaim that the civilian courts are the government’s venue of choice for all terrorism cases — even those against wartime enemy combatants.

Abu Ghaith’s prosecution in federal court fulfills Holder’s persistent aspiration to return the fight against terrorism to a law enforcement mode. Holder is a dope, but the fish is, as usual, rotting from the head.

Speaking at a town hall meeting in Pennsylvania during the presidential campaign in June 2008, Barack Obama addressed the Supreme Court’s Boumediene decision granting Guantanamo detainees the right to challenge their confinement through habeas corpus proceedings in federal court. Obama asserted that the “principle of habeas corpus, that a state can’t just hold you for any reason without charging you and without giving you any kind of due process — that’s the essence of who we are.” He explained:

I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday.

Obama’s comments derive from “the higher wisdom” that fueled his 2008 campaign and that is now operative in his administration. Holder perfectly reflects it.

In referring Abu Ghaith for trial in federal court in Manhattan, cloaking him with the rights of criminal defendants under the Constitution of the United States, Holder seeks to give him his “day in court.” He also seeks to “t[each] the entire world about who we are but also the basic principles of rule of law.” Right on schedule the White House released this statement on Abu Ghaith’s prosecution yesterday:

“Article 3 courts have shown that they are, in many ways, a more efficient way for us to deliver justice to those who seek to harm the United States of America and that is the consensus view of the president’s national security team and of agencies all across the federal government — that this is the best way to handle bringing Abu Ghaith to justice,” Deputy Press Secretary Josh Earnest said Friday.

It is worth reiterating that the only appropriate response to Obama’s campaign comments on Boumediene is: “Not true.” The higher wisdom is founded on false precepts. The Nuremberg trial was conducted before a military commission composed of representatives of the United States, Great Britain, France and the Soviet Union. Obama to the contrary notwithstanding, the Nuremberg defendants weren’t brought before a federal court or cloaked with the protections of the United States Constitution.

The most prominent surviving Nazi leaders were brought for trial before the Nuremberg tribunal in late 1945. Winston Churchill had proposed, not unreasonably, that they be summarily shot. The victorious allies nevertheless subsequently agreed that they would be brought before a military commission to be convened pursuant to the London Agreement of August 8, 1945.

In Boumediene, the Supreme Court disapproved of the system of military commissions Congress had adopted at the Supreme Court’s urging. Obama to the contrary notwithstanding, the Nuremberg defendants’ “day in court” occurred before the kind of tribunal the Supreme Court found constitutionally inadequate in Boumediene.

The Nazi war criminals were given no access to American courts. Their rights before the Nuremberg tribunal were governed by the charter annexed to the London Agreement. The charter’s “fair trial” provision was extraordinarily brief. It required only the preparation of an indictment (to be translated into the defendant’s language) and accorded defendants an explanation relevant to the charges made against them in the proceedings; the translation of the proceedings into defendants’ language; the right to conduct their own defense before the tribunal or to have the assistance of counsel; the right to present evidence at the trial in support of his defense, and to cross-examine any witnesses testifying against him.

The charter provision on the appeal rights of the Nuremberg defendants was even shorter and sweeter. There were no appeal rights. The charter provided: “The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review.”

The second paragraph of the protocol sets forth the “Factors for Determination of Prosecution.” It provides: “There is a presumption that, where feasible. referred cases will be prosecuted in an Article III [federal] court, in keeping with traditional principles of federal prosecution.” Congress respectfully disagreed, but Holder has now found his workaround.

Congress forced the Obama administration to abandon its plan to try KSM and other Guantanamo detainees in New York City. It lies upon us once again to recall the source of the error and correct it. The “presumption” that unlawful enemy combatants are to be treated like American citizens is an offense against law, tradition and reason, but it does not stand alone, and it does not derive in the first instance from Eric Holder.